978 F.2d 1472 (7th Cir. 1992), 91-3269, United States v. Olson

Docket Nº:91-3269, 91-3270.
Citation:978 F.2d 1472
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Duane R. OLSON, also known as Duke, and George Morris, Defendants-Appellants.
Case Date:November 05, 1992
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit
 
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978 F.2d 1472 (7th Cir. 1992)

UNITED STATES of America, Plaintiff-Appellee,

v.

Duane R. OLSON, also known as Duke, and George Morris,

Defendants-Appellants.

Nos. 91-3269, 91-3270.

United States Court of Appeals, Seventh Circuit

November 5, 1992

Argued May 21, 1992.

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Barry R. Elden, Asst. U.S. Atty., Matthew C. Crowl (argued), Office of U.S. Atty., Crim. Receiving, Appellate Div., Chicago, Ill., for plaintiff-appellee.

Gregory J. Schlesinger (argued), Schlesinger & Krasny, Chicago, Ill., for defendant-appellant Duane R. Olson.

Daniel G. Martin, Federal Public Defender (argued), Office of Federal Public Defender, Chicago, Ill., for defendant-appellant George Morris.

Before COFFEY and KANNE, Circuit Judges, and ESCHBACH, Senior Circuit Judge.

COFFEY, Circuit Judge.

Duane Olson and George Morris were convicted by a jury of conspiracy to distribute cocaine in violation of 21 U.S.C. § 846, and possessing with intent to distribute cocaine in violation of 21 U.S.C. § 841(a)(1). Additionally, Olson was convicted of distributing cocaine in violation of 21 U.S.C. § 841(a)(1). The district court sentenced Olson to 324 months and Morris to 240 months in confinement. Olson and Morris appeal their convictions on multiple grounds. Their appeals have been consolidated. We affirm.

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I. BACKGROUND

The conviction of Duane Olson and George Morris arose from the sale of cocaine on June 26, 1990 to Karl Fessler a Drug Enforcement Agency ("DEA") informant under the supervision of DEA agent Clifford Best. Fessler went to a hotel in Lombard, Illinois (near Chicago) to meet Olson and Morris. Fessler entered Olson's room and told him the money was downstairs in his van. Olson replied that the cocaine was not in the room. He phoned Morris in another room and told him to "bring the running suits up." Morris appeared at Olson's door with a grey duffel bag on his shoulder. Olson told Fessler there were ten kilograms in the bag. Fessler requested that Olson open the bag and show it to him. Either Morris or Olson, while in each other's presence, opened the bag revealing 8 3/4 kilograms of a white substance in the shape of hockey pucks wrapped in towels and one kilogram wrapped in duct tape. 1 Fessler advised Olson that the cocaine was acceptable and suggested that Morris carry the cocaine to the van where he would be paid.

Morris and Fessler left the room together and met Cliff Best in the lobby. As the three men left the hotel and walked across the parking lot, undercover DEA agents arrested Morris. Thereafter, the DEA Agents searched Morris' hotel room and found another duffel bag containing seven kilograms of a flaky white substance (later determined to be cocaine). The agents proceeded to Olson's room where they arrested him.

Because several of appellants' arguments concern the credibility of DEA informant Karl Fessler, further background facts are relevant to the disposition of this matter.

Appellant Olson acknowledges an association with Fessler beginning in 1976. Olson asserts that he "loaned" Fessler $20,000 for a transaction involving a sale of coffee to Cuban food brokers. The "coffee deal" was an elaborate fraud in which Fessler obtained a line of credit from Cuban banks to Canadian banks for a coffee shipment. The coffee never existed, rather, Fessler purchased a ship, insured it, and planned to sink it (alleged coffee and all) in route to Cuba. After investigation and upon discovery of the fraud, Fessler was charged and extradited to Canada for trial while the United States Treasury Department froze his assets.

In 1984, Fessler was convicted in federal court of conspiracy to possess narcotics and he now admits he took the stand and lied during that trial. Upon release from prison, Fessler was paroled and deported to his native Germany on February 16, 1989.

Later in 1989, Fessler contacted the DEA investigator responsible for his conviction and requested that he be allowed to return to the United States and become a paid drug informant. Fessler provided the names of 35 people he suspected of narcotics involvement. (Olson was on the list, Morris was not). The DEA responded by making arrangements for Fessler to reenter the United States under the supervision of DEA agent Clifford Best.

Upon arrival in the United States, Fessler was interviewed for two days and subjected to a polygraph test. The polygraph test indicated that Fessler had been untruthful when asked during the two day briefing whether he had supplied any false information to the DEA. The polygraph expert, DEA Agent Behrmann, confronted Fessler and he admitted to his deception by explaining his uncertainty regarding the potential of successful investigations against all the targets he had named.

Despite Fessler's apparent unreliability, Agent Best decided to make use of him in an investigation. Between January and late March the DEA sought and obtained approval from the U.S. Parole Commission for Fessler to work as a cooperating individual. 2

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On January 24, 1990, Best had Fessler write letters to a number of the 35 people suggesting they "talk business." Olson responded immediately, stating that he had "[l]ots to talk about some day" and provided a telephone and facsimile ("fax") number.

Between March 1990, and June 21, 1990, Fessler and Olson engaged in numerous phone conversations, fax exchanges, and even met "eyeball to eyeball" in Florida on May 18, 1990 to discuss drug transactions. Fessler was able to tape record some of the conversations while others he merely recorded by written notes. All of the communications involved "Drugspeak" (using code language to disguise the nature of the discussions). Olson informed Fessler that "property" (cocaine) was scarce and going for "24-25 dollars an acre up to 29 dollars an acre" ($24-25,000 up to $29,000 per kilogram).

The substance of the negotiations involved Fessler purchasing large quantities of cocaine. Olson claimed he could provide both Columbian (soft, flaky cocaine) and Bolivian (hard 250 gram cocaine pieces resembling hockey pucks) and that his driver (Morris) could deliver it from Florida to Chicago. At a prearranged meeting on June 21, 1990, Fessler and Olson met in a Chicago hotel where Olson provided a 250 gram sample of Bolivian cocaine. 3 Olson told Fessler that if it was satisfactory the purchase price would be $6500. The next day, under the direction of DEA Agent Best, Fessler called Olson informing him that the cocaine was satisfactory and he would purchase it. Shortly thereafter, Fessler met Olson at the hotel and paid $6500 for the sample. At this meeting, Olson also informed Fessler that he had another kind of cocaine (flaky) that he would bring as a sample.

Olson suggested to Morris that he rent a car and meet him in Florida. Morris rented a car in his own name in Chicago and drove to Florida where he met up with Olson at his Florida home.

While Morris was having a sandwich in the house, Olson placed two duffel bags in the trunk of Morris' rented car (one containing seven kilograms of flaky Columbian cocaine and the other containing nine kilograms of Bolivian "hockey puck" cocaine and one kilogram of Columbian). Thereafter, Morris returned to Chicago and met Olson at the hotel pursuant to Olson's instructions.

On June 25, 1990, Olson called Fessler from the hotel in Lombard, Illinois and explained that he had less of the Bolivian cocaine but had eight kilograms of Columbian. On the morning of June 26, 1990, Fessler met Olson at the hotel and they discussed quantity and price ($253,000), and at this time, Morris called Olson in his room and told him he would arrive in about five hours. Olson gave Fessler forty banking envelopes in which to place the money and they parted, agreeing to meet later that evening.

That afternoon, Morris arrived at the hotel and carried the two duffel bags to his room. Later in the evening, while under DEA surveillance, Fessler returned to the hotel with the $253,000 in cash. Shortly thereafter, the DEA agents arrested Morris and Olson and seized the cocaine.

At trial, Olson took the stand and neither denied the negotiations nor the delivery of the cocaine. Rather, Olson asserted and the jury rejected an entrapment defense. Morris did not take the stand (the jury was appropriately instructed not to weigh this against him).

II. ISSUES

Appellant Morris raised the following questions on appeal: 1) whether the trial court erred in not disclosing the government

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informant's address to facilitate the defendants' trial preparation (the defendant asserts that this ruling denied him due process of law and his Sixth Amendment right to confront his accusers); 2) whether the district judge misstated the law when instructing the jury regarding Morris' involvement in a conspiracy, and 3) whether the evidence at trial was sufficient to establish that Morris was guilty of the charged crimes beyond a reasonable doubt.

Appellant Olson raised the same argument as to the trial court's refusal to disclose Fessler's address. He also argues that the trial court erred in, 1) ruling as inadmissible evidence of Fessler's failed polygraph examination; 2) refusing to grant a mistrial for the government's violation of a pre-trial order against inquiring into Olson's tax filings, and 3) failing to uphold a motion invoking the outrageous government conduct doctrine. Additionally, we will address Olson's entrapment argument which he discussed extensively in oral argument but failed to set forth in his appellate brief.

III. DISCUSSION

  1. DISCLOSURE OF WITNESS' ADDRESS

    Both Olson and Morris claim the trial court's failure to order production of the confidential informant's address...

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